People v. Anderson

• Decision Date: 24 September 1996
• Citation: 231 A.D.2d 459,647 N.Y.S.2d 737
• Parties: The PEOPLE of the State of New York, Appellant, v. Vivian ANDERSON, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 737

647 N.Y.S.2d 737

231 A.D.2d 459

The PEOPLE of the State of New York, Appellant, v. Vivian ANDERSON, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Sept. 24, 1996.

Stanley R. Kaplan, for Appellant.

Frank Brady, for Defendant-Respondent.

Before MURPHY, P.J., and ROSENBERGER, WALLACH, KUPFERMAN and NARDELLI, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Eugene Oliver, Jr., J.), entered March 9, 1995, which granted defendant's motion to dismiss the indictment pursuant to CPL 30.30, unanimously affirmed.

The motion court charged the People with 229 days of includable time, and they now raise two main arguments in support of a reversal. First, the court charged them with 49 days with respect to an adjournment from May 21, 1993 to July 9, 1993 on the grounds that there was no indication in the record that the People were ready for trial on the former date. However, contrary to that finding, the transcript provided indicates that the People did in fact declare their readiness on that date. Respondent claims that this adjournment was granted at the People's request in order to obtain a superseding indictment. While the record bears this out, such does not negate the People's assertion of readiness on the original indictment. As this Court recently noted under similar circumstances: "Neither the People's intention to file a superseding indictment nor their filing of such an indictment signifies a lack of readiness to proceed on the original indictment because ... the People were 'technically positioned' to go to trial." ( People v. Gutter, 222 A.D.2d 330, 331, 636 N.Y.S.2d 19, 21, quoting People v. Cruz, 111 A.D.2d 725, 725-726, 491 N.Y.S.2d 330, lv denied 66 N.Y.2d 614, 494 N.Y.S.2d 1037, 485 N.E.2d 241). This period was therefore erroneously charged to the People.

The court also improperly charged the People with several five-day periods, pursuant to CPLR 2103(b)(2), following their service of statements of readiness by mail. This CPLR provision has no application to the determination of the effective date of a statement of readiness. When such statements are made in the absence of defense counsel, they are deemed effective at the time of filing, so long as defense counsel is promptly notified (see, People v. Kendzia, 64 N.Y.2d 331, 337, n. *, 486 N.Y.S.2d 888, 476 N.E.2d 287).

However, the People still exceeded the six month statutory limit in this case. Speedy trial time began to run on January 22, 1993, when respondent was arraigned on the felony complaint in Criminal Court. The entire 66 day period between the commencement of the action and respondent's Supreme Court arraignment was includable since the period prior to the People's obtaining an indictment is chargeable to them, absent the applicability of some exclusion. Here, the People assert that this period is excludable because respondent had indicated her intent to testify before the Grand Jury, and the adjournments were made to accommodate such desire. However, the record does not indicate that the adjournment was solely for such purpose, and indeed, the People had not completed presenting...